Foxman gets it wrong

November 14, 2012

Michael Foxman's Guest Commentary ("Response to Peter Bauer," Nov. 5) included more misinformation and distortion. Mr. Foxman makes a number of erroneous statements, sprinkled with personal attacks. Unfortunately, these days Protect could spend nearly all its time responding to deliberate attempts to misinform the public about its role in trying to hold a public agency accountable for violating its laws and procedures, so I will only respond here on the most substantive issues.

Let's first look at Mr. Foxman's contention about his team's involvement in ex parte communications. He wrote: "Ex parte communications? Does anyone really believe the (state Adirondack Park Agency) staff, our experienced attorneys, the state attorney general's office or anyone on the second floor would be so stupid as to break the rules, let alone file false sworn denials after the question was raised? It is easy for lobbyists to write lies and spin facts in newspapers; everyone expects it. But perjury is a felony."

Through a Freedom of Information Law request to the APA, Protect obtained the following memo from Mr. Foxman's lawyer that updated the Foxman team (and APA General Counsel John Banta, who was copied via email) on the negotiations for an approval from the APA:

"Memo Via E-mail

To: Mike Foxman, Tom Lawson, Bob Sweeney, Jeff Anthony, Kevin Franke

From: Thomas A. Ulasewicz

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"Van Cott called me this morning. The Final Order and draft Permits are posted on the Agency's website. The language in these documents are what the Agency members got Wednesday evening and do not reflect a number of changes, he, I and Banta agreed to. He specifically mentioned paragraph# 30 in the 8 Large Eastern GCL Permit where deed restrictions are to be in place 'prior to conveyance' instead of our agreement that it would be 'prior to undertaking'. Also, this same paragraph says this provision 'will only be enforced by the Agency and the Town of Tupper Lake'- he could not explain to me why executive staff put in the Town. I told him this is unacceptable and the Town has more than enough 'control' through the plat process (and IDA funding).

"VanCott called me back at 11AM to tell me that a second posting of Permits will go on the website today (he thought before 2PM when a phone conference is to take place between Agency members and Martino). All of the changes he, I and Banta had agreed to along with putting paragraph # 30 back to its original language will be reflected in this new posting. He asked that we review those permits intended to be implemented early on and get back to him today with concerns. He offered to meet with me on Sunday if we had our comments together on the whole package so that he could bring them to the attention of Banta and Chairwoman Ulrich first thing Monday morning. I told him I would see what I could coordinate. I have his cell phone number and we arranged to talk again this afternoon (probably after the conference call)."

This memo appears to show a level of access to the APA that violates its ex parte contact rules, under which all correspondence between the parties and the APA decision-makers should be shared among all parties to the hearing. These rules apply until the APA makes a final decision. None of the applicant's negotiations, which were apparently extensive, were ever shared with the other parties. Protect only found out about them through a FOIL request. Why didn't Mr. Foxman insist that his attorneys follow the rules and share their communications with the other parties?

To Protect, the level of access and negotiations that Mr. Foxman's team had during the lead-up to the APA's final decision appears to violate the ex parte contact rules where state laws clearly prohibit both direct and "indirect" communications. It's clear from the memo above that the Foxman team had a direct line of communication to senior officials and the APA chair. To Protect, this, too, appears to violate these rules.

Other materials obtained from FOIL requests appear to show that there was wide involvement by other state officials, too.

In addition to the privileged access granted to Mr. Foxman's team during APA's deliberations about the final permit, detailed in the memo above and not given to any of the other parties to the hearing, Protect believes that the APA violated its laws in other areas, too.

Protect believes that the APA selectively administered the APA Act by picking and choosing parts of the act it believed were relevant while disregarding other parts as mere guidance or recommendations, that the APA illegally supplemented the hearing record with new materials at the 11th hour in order to try to substantiate its decision, and that the APA failed to make its required findings about numerous impacts. Protect's lawsuit enumerates the many ways that the APA failed to follow the law on its way to approving Mr. Foxman's project. (All of our legal papers are posted on the Protect website, www.protectadks.org.)

Protect maintains that the only way Mr. Foxman's deeply flawed project got a 10-1 vote from the APA was by numerous violations of APA laws and procedures. Mr. Foxman is apparently satisfied to win approval by these means, but Protect cannot abide it when a public agency seemingly deliberately subverts state laws and procedures it's required to uphold.

Protect's lawsuit against the APA over its decision to approve Mr. Foxman's Adirondack Club and Resort project is about serious and important issues.

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Peter Bauer is executive director of Protect the Adirondacks and lives in Lake George.